Hargrove v. Titan Textile Co.

KITTREDGE, J.:

I respectfully dissent. This appeal presents the question of whether substantial evidence supports the Commissions finding that Sandra Hargroves nine-day tenure at Perdue Farms — -comprised entirely of orientation, training and light work — exacerbated a condition caused by her long-time employment at Dillon Yarn. Having carefully considered the record and applicable standard of review, I would reverse based on my conclusion that the Commission’s finding that Hargrove aggravated her pre-existing condition in the course of her brief employment at Perdue Farms is not supported by substantial evidence. In my judgment, the Commissions decision rests solely on speculation.

Hargroves condition undisputedly originated from her work at Dillon Yarn, where she was employed periodically from 1992 through March 23, 2000. Neither Hargrove nor Dillon Yarn dispute the Commissions finding that Hargroves condition was caused by her employment with Dillon Yarn. Thus, this finding is the law of the case. See Unisun Ins. v. Hawkins, 342 S.C. 537, 544, 537 S.E.2d 559, 563 (Ct.App.2000) (stating an unappealed ruling is the law of the case which the appellate court must assume was correct). Hargrove worked eight-hour shifts at Dillon Yarn, during which she would lift, bag, and box between 600 and 800 spools of yarn from a texturing machine.

On March 13, 2000, Hargrove began her brief tenure with Perdue Farms, while continuing to work full-time at Dillon Yarn. Hargrove worked only 25.61 hours in her first of two weeks as an employee of Perdue Farms. Her first day of employment at Perdue Farms was entirely devoted to orienta*298tion and classroom training. On the remaining four days of her first week, Hargrove spent four hours each day receiving additional classroom training and four hours each day on a special production line used to train new employees. The training line moved at half the speed of the normal production lines. Hargrove would rotate between functions throughout the day rather than doing one thing repetitively all day. According to Hargrove, the work using her hands did not involve “any real effort.”

During Hargrove’s second week at Perdue Farms, she worked 23.18 hours over a four-day period. She continued to work at a training line until fourth day, March 23, 2000, when the line went down. Although she “didn’t do much that day” at Perdue Farms, Hargrove did help move empty boxes. Later that same day, Hargrove went to her job at Dillon Yarn, where she complained to her supervisor that her left hand was “swollen,” “feeling funny,” and had “started hurting.” The supervisor sent her to the plant’s nurse, who gave Hargrove Tylenol. Hargrove completed her shift, but later went to a physician for additional treatment. Upon the physician’s recommendation, Hargrove did not return to work at Dillon Yarn or Perdue Farms. She later brought the present action, seeking workers’ compensation benefits from Dillon Yarn. Dillon Yarn joined Perdue Farms as a defendant.

In deposition testimony, the following exchange occurred between Dillon Yarn’s counsel and Hargrove:

[Counsel]: Did the fingers on your left hand feel funny while you were working at Perdue [on March 23, 2000]?
[Hargrove]: No sir.

When Dillon Yarn’s counsel asked Hargrove whether she had “ever felt that funny feeling before,” Hargrove responded, “The only time I felt that is like when I worked hard at Dillon Yarn.” When questioned as to whether she had any knowledge of an incident or accident at Perdue Farms related to her condition, she responded, “No, sir.”

Dr. Dwight Jacobus, a general orthopedic surgeon who served as one of Hargrove’s treating physicians, provided additional deposition testimony. During the deposition, a hypothetical question posed to Dr. Jacobus solicited his opin*299ion regarding which of Hargrove’s jobs had caused her condition, or whether the condition was caused by “a combination of the two” jobs. In pertinent part, the hypothetical was premised on the false assumption that Hargrove’s employment at Perdue Farms consisted of “one week of training and two weeks of actually performing the job.” Jacobus opined that the long-term, repetitive nature of her job at Dillon Yarn “would have been the activities that instituted the changes leading to the diagnosis or at least the symptoms of carpal tunnel syndrome.” He added that the “secondary job responsibilities of stripping chicken [at Perdue Farms], as I perceive that to be, would therefore possibly exacerbate symptoms that were instituted by the initial responsibilities [at Dillon Yarn.]” (emphasis added).

The order of the single commissioner erroneously stated that Dr. Jacobus opined that Hargroves “left upper extremity problems were most probably caused and aggravated by her work [and] both jobs would have exacerbated her problem.” (emphasis added). The commissioner concluded that Hargroves work at Perdue exacerbated her pre-existing condition. Consequently, the commissioner ordered Dillon Yarn and Per-due Farms to each pay one-half of the temporary total disability benefits awarded Hargrove, as well as charges for all past, present, and continuing medical expenses related to the injury. An appellate panel of the Commission affirmed, adopting all of the single commissioners findings. The circuit court affirmed the Commission.

I recognize that in workers compensation cases, compensation may be awarded although “a medical expert is unwilling to state with certainty a connection between an accident and an injury if there are facts outside the medical testimony that also support an award.” Tiller v. Natl. Health Care Ctr., 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999), citing Grice v. Dickerson, Inc., 241 S.C. 225, 127 S.E.2d 722 (1962). This court applied this principle in Muir v. C.R. Bard, Inc., 336 S.C. 266, 287, 519 S.E.2d 583, 594 (Ct.App.1999) (“If a medical expert is unwilling to state with certainty a connection between an accident and an injury, the expression of a cautious opinion may support an award if there are facts outside the medical testimony that also support an award”). Here, the Commission relied solely on the testimony of Dr. Jacobus in *300finding that Hargroves employment at Perdue Farms exacerbated her condition. The Commission adopted the single commissioners finding that Dr. Jacobus opined that Hargroves condition was “most probably” exacerbated by both of her jobs. Dr. Jacobus rendered no such opinion, as he only testified that Hargroves work at Perdue Farms “possibly exacerbate[d]” symptoms of the condition caused by her work at Dillon Yarn. At best, Dr. Jacobus provided an “expression of a cautious opinion” with respect to the relationship between Hargroves condition and her work at Perdue Farms. There is no additional evidence, lay or otherwise, supporting an award against Perdue Farms. In fact, Hargroves testimony refutes any suggestion or inference of a connection between her injury and her nine-day employment at Perdue Farms, which she conceded did not involve “any real effort.” “Workers’ compensation awards must not be based on surmise, conjecture or speculation.” Tiller, 334 S.C. at 339, 513 S.E.2d at 845.

I reach this conclusion fully cognizant of the deferential substantial evidence standard of review applicable to appeals from the Commission. Consistent with this deferential standard of review, an appellate court must nevertheless ensure the record contains some evidence beyond a mere scintilla which, considering the record as a whole, would allow reasonable minds to concur in the conclusion reached by the Commission. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (holding that an appellate courts review of appeals from the Commission is limited to deciding whether the Commissions decision is unsupported by substantial evidence or is controlled by some error of law); Broughton v. South of the Border, 336 S.C. 488, 496, 520 S.E.2d 634, 637 (Ct.App.1999) (“Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action”). Mindful of this deferential standard of review, the record in my judgment yields, at best, a mere scintilla of evidence to support the Commissions finding that Hargrove aggravated her pre-existing condition in the course of her brief employment at Perdue Farms. I would reverse.